In its opposition to plaintiffs motion for a preliminary
injunction, DOL indicated for the first time that it would be
placing another order for approximately $1 million worth of
Microsoft licenses from an as yet unnamed reseller. Corel
immediately moved to temporarily enjoin DOL from placing that
order. Following oral argument on Corel's motion, I denied it
from the bench. GTSI subsequently intervened as a defendant and
Corel was permitted to take limited discovery on the issue of
whether DOL had acted in bad faith by choosing Microsoft before
Corel was given a fair opportunity to make its presentation to
DOL. Pursuant to Federal Rule of Civil Procedure 65(a)(2), a
consolidated hearing on Corel's motion for a preliminary
injunction and the merits followed.

III. Defendant's Motion to Dismiss or, in the Alternative,
for Summary Judgment

The government and GTSI*fn3 argue that this action must be
dismissed for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), or for failure to state a
claim under Rule 12(b)(6). In the alternative, the government
and GTSI maintain that summary judgment must be entered in their
favor based on the administrative record. Before I address the
government and GTSI's arguments on the merits, I must consider
their jurisdictional challenge.

A. Motion to Dismiss for Lack of Subject Matter
Jurisdiction Under Rule 12(b)(1)

In deciding a motion to dismiss, the court must draw all
inferences from the facts alleged in the complaint in the
plaintiffs favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974). For the purposes of
Rule 12(b)(1), it is the plaintiffs burden to establish by a
preponderance of the evidence that subject matter jurisdiction
exists. See Fitts v. Federal Nat'l Mortgage Ass'n,
44 F. Supp.2d 317, 320 (D.C. 1999) (citations omitted), aff'd,
236 F.3d 1 (D.C.Cir. 2001).

The government and GTSI maintain that Corel has failed to meet
its burden because DOL procured its Microsoft software licenses
from GTSI by placing orders under an indefinite delivery
contract governed by FASA. DOL argues, as it did with success
before the GAO, that CICA's savings clause coupled with FASA's
nonreviewability clause preclude review of the DOL's
standardization decision because any order DOL places under the
NIH contract is generally unreviewable. In dismissing the
Corel's protest, the GAO reasoned:

In re Corel Corp., No. B-283862 at 2. Accordingly, because
Corel was protesting a specific order placed under a delivery
order contract, FASA's bar against bid protests deprived the GAO
of authority to review the underlying justification for DOL's
placement of the order.

Putting aside the issue of whether DOL's standardization
decision is reviewable under the APA, a topic to which I shall
return, the government's and GTSI's argument that FASA deprives
this Court of subject matter jurisdiction misconceives the
nature of Corel's complaint. Corel is not protesting the
issuance of an individual delivery order that is exempt from
review under FASA. Instead, Corel has filed a complaint for
declaratory and injunctive relief challenging DOL's overarching
administrative decision to standardize to Microsoft Office in
the first place, claiming that DOL failed to comply with CICA
and the FAR during that process.

Under these circumstances, jurisdiction is proper under either
28 U.S.C. § 1331 or the Tucker Act, 28 U.S.C. § 1491. District
courts have federal question jurisdiction over cases "arising
under the Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. "It is hornbook law that a complaint need only
contain an allegation of a non-frivolous claim made under a
federal law in order to defeat a motion to dismiss for lack of
subject matter jurisdiction." York Assocs., Inc. v. Secretary
of Housing and Urban Dev., 815 F. Supp. 16, 20 (D.C. 1993)
(citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962)). Here, Corel has alleged violations of CICA and
injury under the APA. These allegations are sufficient to
establish federal question subject matter jurisdiction.

Corel has also cited the Tucker Act as a basis for
jurisdiction. (Compl. at §§ 5-6.) That statute gives district
courts authority "to render judgment on an action by an
interested party . . . [involving] any alleged violation of a
statute or regulation in connection with a procurement or a
proposed procurement." 28 U.S.C. § 1491(b)(1). The Federal
Circuit has noted that "[t]he operative phrase `in connection
with' is very sweeping in scope. As long as a statute has a
connection to a procurement proposal, an alleged violation
suffices to supply jurisdiction." RAMCOR Servs. Group, Inc. v.
United States, 185 F.3d 1286, 1289 (Fed.Cir. 1999). Because
Corel has alleged that DOL's standardization decision violated
CICA and that decision was "in connection with" its ultimate
procurement of Microsoft software licenses, Corel has satisfied
this aspect of the Tucker Act's jurisdictional requirements.

I also find that Corel is an "interested party" as
contemplated by the Tucker Act. Although the Tucker Act does not
specifically define the term "interested party,"*fn4 the
Federal Court of Claims, which regularly adjudicates government
contracting cases, has repeatedly found that "to be an
`interested party' under the Tucker Act, a `plaintiff must stand
in some
connection to the procurement, and it must have an economic
interest in it.'" Phoenix Air Group, Inc. v. United States, 46
Fed. Cl. 90, 102 (2000) (quoting CCL, Inc. v. United States,
39 Fed. Cl. 780, 790 (1997)), appeal dismissed by agreement,
243 F.3d 555 (Fed.Cir. 2000).*fn5 Moreover, "where a claim is
made that the government violated CICA by refusing to engage in
a competitive procurement, it is sufficient for standing
purposes if the plaintiff shows that it likely would have
competed for the contract had the government publicly invited
bids or requested proposals." CCL, Inc., 39 Fed. Cl. at 790.
Here, Corel has made the requisite showing by alleging that DOL
refused to engage in a competitive procurement for its office
automation systems and that, had such a competition been held,
Corel would have submitted a bid. Indeed, Corel did submit a bid
to DOL even though DOL purports never to have engaged in a
formal solicitation under CICA. Corel therefore has standing to
bring its claims that DOL violated CICA and in turn acted
arbitrarily and capriciously under the APA.

B. Motion to Dismiss for Failure to State a Claim Under
Rule 12(b)(6) or, in the Alternative, for Summary Judgment
Under Rule 56

DOL's motion to dismiss for failure to state a claim is an
adaptation of its jurisdictional challenge. DOL maintains that,
even if the initial decision to standardize to Microsoft can be
divorced for jurisdictional purposes from its subsequent
decision to implement the standardization via an indefinite
delivery contract, Corel has nevertheless failed to state a
claim on which relief can be granted because DOL's decision to
standardize to Microsoft was an internal policy decision
unconnected to any reviewable procurement action.

I must resolve this issue under Rule 56 of the Federal Rules
of Civil Procedure because I have considered matters outside of
the pleadings, most notably the administrative record, in
reaching my decision. See Fed.R.Civ.P. 12(b). Rule 56 provides
that summary judgment is proper when "there is no genuine issue
as to any material fact and . . . the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(c). Because
this case involves review of the administrative record, it
raises questions of law for which summary judgment is
appropriate. See Richards v. INS, 554 F.2d 1173, 1177 n. 28
(D.C.Cir. 1977).

1. Applicable Law

This case turns on a determination of what law applies, if
any, to DOL's decision to standardize to Microsoft. It is
undisputed that the procurement vehicle DOL used to implement
its standardization decision is a delivery order contract
governed by FASA. However, the parties vehemently disagree about
whether DOL was required to justify its pre-delivery decision to
standardize to Microsoft in accordance with the CICA and its
implementing regulations in the FAR.

More importantly, CICA's savings clause specifically provides
that CICA's full and open competition requirements do not apply
"in the case of procurement procedures otherwise expressly
authorized by statute. . . ." 41 U.S.C. § 253(a)(1). Thus, the
D.C. Circuit has held that the government's choice of a
contractor to construct a building in Washington's "Federal
Triangle" at the contractor's own cost was not a "procurement"
governed by CICA because: (1) the choice of a contractor did not
actually involve an immediate purchase of anything even though
the government would later pay for the development through rent,
and (2) CICA's requirements were supplanted by the procurement
procedures set forth in the Federal Triangle Development Act of
1987. See Saratoga Dev. Corp., 21 F.3d at 452-46. Likewise, in
a case bearing some striking factual similarities to this one,
the District Court for the District of New Jersey held that the
Air Force's decision to purchase computer equipment from IBM was
not governed by CICA because the Air Force made its procurement
by placing an order under a requirements contract that had
previously been awarded to IBM by another agency in accordance
with the Economy Act, 31 U.S.C. § 1535. See National Gateway
Telecom, 701 F. Supp. at 1113. The court reasoned that the
Economy Act displaced CICA's full and open competition
requirements because "[p]resumably, the other agency would have
complied with all requirements relating to fully or limited
competitive bids and, thus, such a procedure should not have an
adverse effect upon the government's ability to obtain goods and
services at competitive prices." Id.

In the face of the plain language of CICA, FASA, and the FAR,
Corel is left to argue that FASA should not be construed to mean
what it says. Corel maintains that FASA did not anticipate the
proliferation of GWACs which — like the NIH contract — permit
agencies to enter into indefinite delivery contracts with
retailers such as GTSI instead of manufacturers such as Corel
and Microsoft. Corel may very well have identified an anomaly
created by FASA which exempts federal agencies from having to
conduct a full and open competition amongst manufacturers so
long as the agency previously conducted a full and open
competition amongst retailers. However, the portions of FASA's
legislative history relied upon by Corel do not squarely address
this point, see H.R. Conf. Rep. No. 103-712, at 178 (1994),
reprinted in 1994 U.S.C.C.A.N. 2607, 2608, and without firmer
evidence of congressional intent to the contrary, I lack the
authority to rewrite what are otherwise unambiguous statutory,
as well as regulatory, provisions. See, e.g., Eagle-Picher
Indus., Inc. v. U.S. EPA, 759 F.2d 922, 929 (D.C.Cir. 1985)
(holding that there must be "very clear legislative history
indicating that Congress has an intent contrary to that
expressed in the statute" to justify "departing from the clear
language and structure of the statute"). If Corel is convinced
that the proliferation of GWACs in the wake of FASA's passage
has created a gaping and unintended loophole in CICA, the
appropriate audience for such a complaint is Congress, not this
Court.

Based on my review of the record, I cannot conclude that the
government's litigation position is a post-hoc rationalization
as Corel contends. Federal procurement law has been aptly
described by the D.C. Circuit as "a tangle of complex statutory
and decisional rules." M. Steinthal & Co. v. Seamans,
455 F.2d 1289, 1302 (D.C.Cir. 1971). To the extent Mr. Hugler and Ms.
Lattimore construed how those rules would apply to the DOL's
ultimate procurement decision, they were simply mistaken. It
also bears reiterating that the correspondence between Hugler
and Lattimore occurred before DOL made its ultimate decision to
procure Microsoft products under FASA instead of CICA. Thus, I
will not hold that CICA applied to the DOL's pre-delivery
decision to standardize to Microsoft simply because two DOL
officials believed at one point prior to the ultimate
procurement decision that CICA would apply.

My conclusion that CICA is inapplicable dispenses with Corel's
claims under NAFTA as well. Corel has asserted that it has not
based any of its claims on NAFTA itself, but rather on "the
specific requirements of CICA and the FAR" which implement
CICA's competition requirements for eligible offerors from
Mexico and Canada. (Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in
the Alternative, for Summ. J. at 26) (citing
48 C.F.R. § 25.405). However, because CICA does not apply to DOL's
standardization decision, neither do the FAR provisions that
implement CICA's competition requirements. Corel's NAFTA-based
claims therefore suffer the same fate as Corel's claims under
CICA.

Second, the government and GTSI argue that DOL's
standardization decision was also "committed to agency
discretion by law." This exception to the presumption of APA
review applies "even when Congress has not affirmatively
precluded judicial oversight, [because] `review is not to be had
if the statute is so drawn that a court would have no meaningful
standard against which to judge the agency's exercise of
discretion.'" Webster v. Doe, 486 U.S. 592, 599-600, 108 S.Ct.
2047, 100 L.Ed.2d 632 (1988) (quoting Heckler v. Chaney,
470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)); see also
Varicon Int'l v. Office of Personnel Mgmnt., 934 F. Supp. 440,
443-44 (D.C. 1996). The government and GTSI argue that if CICA
does not apply in this case, as I have found, then there is no
meaningful statutory standard against which I can judge whether
the agency's decision was arbitrary and capricious under the
APA.

I find the government's first argument particularly
convincing, and the second may also have merit. Although this
Court has subject matter jurisdiction to decide whether DOL
violated CICA, once it is determined that FASA preempts CICA,
FASA's bar against bid protests would appear to preclude review
of the administrative decisions leading up to the procurement.
See Phoenix Air Group, 46 Fed. Cl. at 105 (noting that
analogous provision to section 253j(d) in Armed Services
Procurement Act, 10 U.S.C. § 2304c(d), limited the types of
challenges that can be made to the agency's decision when the
procurement is made with a task or delivery order). Moreover,
the APA merely establishes a standard of review for determining
whether there has been a
deprivation of an independent statutory right. See Califano v.
Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977);
Cobell v. Babbitt, 91 F. Supp.2d 1, 29 (D.C. 1999), aff'd,
240 F.3d 1081 (D.C.Cir. 2001). CICA's inapplicability would
presumably deprive Corel of the statutory "hook" for its APA
claims, in turn implying that the standardization decision was
committed to the agency's discretion.*fn9 I need not
definitively resolve these questions, however, because even if
the DOL's standardization decision is reviewable, I find that it
was not arbitrary and capricious.

3. APA Arbitrary and Capricious Review

In disappointed bidder cases, the government is entitled to
"an especially deferential version of arbitrary and capricious
review" under section 706(2)(A) of the APA. Iceland Steamship
Co., Ltd. v. United States Dep't of the Army, 201 F.3d 451, 457
(D.C.Cir.), cert. denied, 529 U.S. 1112, 120 S.Ct. 1967, 146
L.Ed.2d 798 (2000). Under this standard, Corel bears the "`heavy
burden of showing either that (1) the procurement official's
decisions on matters committed primarily to his own discretion
had no rational basis, or (2) the procurement procedure involved
a clear and prejudicial violation of applicable statutes or
regulations.'" Irvin Indus. Canada, Ltd. v. United States Air
Force, 924 F.2d 1068, 1072 (D.C.Cir. 1990) (quoting, among
other authorities, Kentron Hawaii Ltd. v. Warner,
480 F.2d 1166, 1169 (D.C.Cir. 1973)). Courts demand no more than
"substantial compliance with applicable law and baseline
substantive rationality [because] `[j]udges are ill-equipped to
settle delicate questions involving procurement decisions.'"
Elcon Enters., Inc. v. Washington Metro. Area Transit Auth.,
977 F.2d 1472, 1479 (D.C.Cir. 1992) (quoting Delta Data Sys.
Corp. v. Webster, 744 F.2d 197, 203 (D.C.Cir. 1984) (second
internal quotation and citation omitted)). Accordingly, "the
court should stay its hand even though it might, as an original
proposition, have reached a different conclusion as to the
proper administration and application of the procurement
regulations." M. Steinthal & Co., 455 at 1303.

Corel argues that DOL's decision to standardize to Microsoft
was both an illegal sole source procurement and substantively
irrational. With respect to the former contention, I have
already found the CICA and the FAR are inapplicable because DOL
made its procurement under FASA. Accordingly, Corel has not met
its burden of proving a clear violation of any applicable
procurement statute or regulation, let alone a prejudicial one.

Corel argues that DOL's standardization decision was
irrational for two principle reasons. First, Corel contends that
is was arbitrary and capricious for DOL not to consider
Microsoft's status as a monopolist and purported violator of
antitrust laws. Second, Corel attacks DOL's purported technical
and economic justifications for choosing Microsoft over Corel.
These arguments do not sustain Corel's "heavy burden."

Corel's second line of attack against the DOL's rationale for
choosing Microsoft deserves more extended discussion than the
first. Before assessing the merits of Corel's economic and
technical arguments, I must initially determine the scope of
material I may properly consider in my substantive review of
DOL's decision.

Although the subject matter of this case does have a highly
technical aspect, Dr. DeRamus's declarations are not primarily
explanatory in nature. The first sentence of the declaration he
submitted in support of Corel's motion for a preliminary
injunction quite accurately encapsulates the purpose and nature
of his submissions. That sentence reads, "At the request of
[plaintiffs counsel], I have prepared this report to assess the
technical and financial merits of the decision by the
Department of Labor ("DOL") to standardize on and buy only
Microsoft . . . Office as the office productivity software suite
for all DOL agencies and users." (Second DeRamus Decl. at ¶ 1)
(emphasis added). Dr. DeRamus then does as promised, first
attacking the merits of each justification for DOL's choice to
standardize to Microsoft, then conducting his own cost-benefit
analysis from which he concludes that DOL should have chosen
Corel Office Suite. However, Dr. DeRamus's analysis does not add
factors that DOL failed to consider as much as it questions the
manner in which DOL went about considering the factors it
did. As this Court has noted in the past, "consideration of
outside evidence `to determine the correctness or wisdom of the
agency's decision is not permitted.'" National Treasury
Employees Union, 840 F. Supp. at 169 (quoting Asarco, Inc. v.
U.S. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)); see also
Doraiswamy v. Secretary of Labor, 555 F.2d 832, 842 (D.C.Cir.
1976) (affirming exclusion of extrinsic evidence offered to
challenge the correctness of the agency's decision as opposed to
the "fullness" of the reasons given). Because Dr. DeRamus's
declarations are offered primarily to attack the propriety of
the challenged agency action, they will be stricken.

The record that is properly before me demonstrates that DOL's
decision to standardize to Microsoft was not arbitrary and
capricious. In its final justification for standardizing to
Microsoft, DOL cited four major reasons supporting its decision.
First, DOL claimed that "Microsoft Office maximizes utilization
of the Department's desktop operating system, which today is
Microsoft for all DOL agencies [except for three]." (AR Tab 12
at 385) (emphasis in original). Second, DOL asserted that
"Microsoft Office is the top rated office automation suite for
the value it provides to its users." (Id.) (emphasis in
original). Third, DOL maintained that "Microsoft Office is the
most widely used office automation suite installed on more
than 80 percent of all personal computers." (Id.) (emphasis in
original). Finally, DOL noted that "the majority of the
Department is already using or planning to move to Microsoft
Office." (Id.) (emphasis in original).

DOL's final justification itself is not a model of analytical
clarity. It does not cite to the record, tends toward the
conclusory at points, and is altogether a less than
comprehensive document. However, although not every statement in
the justification is adequately supported by the record, enough
of them are and they establish that DOL's decision satisfies
"baseline substantive rationality." Elcon Enters., 977 F.2d at
1479.

As an initial matter, Corel contends that DOL's claim that
Microsoft Office "maximizes utilization" of the operating system
is simply a conclusory assertion unsupported by any tangible
evidence that Corel applications do not run as well as Microsoft
applications do on Microsoft's operating system. However, the
record does reflect that DOL had experienced problems with Corel
software applications operating on Microsoft's operating
systems. For example, the record contains an extensive log of
computer problems WordPerfect users had reported to DOL's
computer help desk. (AR Tab 12a at 392a-q.) Although Corel has
posited that many of these problems can be traced to Microsoft's
operating system as opposed to Corel's software (Decl. of Robert
Berndt Ex. 1, Attach to Pl.'s Opp'n to Def.'s Mot. to Dismiss
or, in the Alternative, Summ. J.),*fn14 the fact remains that
interoperability between the operating system and software
applications was an issue that DOL reasonably sought to address.
It would be inappropriate to second guess DOL's judgment about
its minimum computer needs. See Building and Constr. Trades
Dept., AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir. 1988)
("When called upon to review technical determinations on matters
to which the agency lays claim to special expertise, the courts
are at their most deferential.") (citation omitted).

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